The Bill of Rights and Roman Law: A Comparative Study, by Joseph Plescia. Bethesda, MD: Austin & Winfield, 1995. 118pp. Cloth $44.95.

Reviewed by Steven Forde, Department of Political Science, University of North Texas.
 

In this book, Joseph Plescia investigates whether the ancient Romans had anything like the rights enshrined in the U.S. Bill of Rights. He does not argue that Roman legal rights in any way paved the way for modern rights, which he believes to have originated entirely in modernity (or out of post-Roman antecedents such as the Magna Carta). In structure, then, the book is paradoxical, for it is divided into sections corresponding to the ten Amendments to the U.S. Constitution that make up its Bill of Rights. Each of these sections then investigates whether the Romans had any legal rights corresponding to those guaranteed by the Amendment in question. The purpose of this format is not entirely clear: classical scholars will no doubt find it Procrustean, while scholars of American Constitutional rights will have no strong reason to be interested in the discussion, if they are persuaded by the author that there is no real link between Roman rights and American rights.

In defense of his project, Mr. Plescia modestly says he is simply continuing or filling out the presentation of Susan Ford Wiltshire’s 1992 book Greece, Rome, and the Bill of Rights (p. 4). He also notes that his is a bare outline of the issues involved. And so it is. The discussion is organized as an outline, divided into the sections mentioned above, often with no more than a remark or two about the particular right in question. That said, the book is an informative, and rather thoroughly annotated, digest of the various legal rights available to Roman citizens (and non-citizens, including slaves) under Roman law. Anyone interested in Roman legal procedure and in the status of such rights in ancient Rome will find this a useful source of quick information.

There are many obstacles making generalizations about Roman legal rights, one of which, as Mr. Plescia points out, is the scarcity of evidence for some of them. Then there is the sheer sweep of history. Over some thousand years, the Romans had a monarchical system, then a republican, and finally the various permutations of imperial rule. For obvious reasons, these changes had significant impact on the Roman legal system and especially on the rights conferred on individuals. Partly because of the way it developed over time, the Roman legal system was quite complex. On the one hand, each law (or category of law) might have its own courts, while on the other different types of courts, with distinct rights and procedures, often had jurisdiction over the same matters. Some of these courts proceeded adversarially, some inquisitorially; some employed juries, some did not. In some of them, something like legal representation was the norm; in others not. Clearly, it is difficult to generalize about Roman legal rights under these circumstances—though we are surely entitled to conclude from this very diversity that the rights we consider fundamental were not thought so by the Romans.

Occasionally, tidbits emerge that will fascinate modern readers interested in rights. For example, there was some Roman law on the status of the unborn child (it had no rights except for some purposes, such as putative property rights; p. 28). "Freedom of religion" was fairly expansive, as polytheism makes it relatively easy to justify; Christians were persecuted in a sense owing to their own intolerance, not the Romans’ (leaving aside the accusations of Christian cannibalism, infanticide, and so on; pp. 42-51). The right of free speech seems to have been fairly broad even under the emperors (pp.110-11). In some respects, the Roman notion of the inviolability of one’s home was more absolute than ours (pp. 66-7). In "capital" cases, the guilty were ordinarily allowed to accept exile (a kind of "civic death") in lieu of physical death (pp.101-3). Of course, for those put to death, there was no notion of a means too "cruel and unusual" to be used in carrying out the sentence. Meanwhile, in Rome, as in the rest of the ancient world, there was virtually no notion of incarceration as a form of punishment (prison for indebtedness was a partial exception; pp. 101-2).

These and other parallels and divergences between Roman and modern notions of legal right invite reflection on the similarities and differences between our approach to politics and law and that of the Romans, and on the appropriate extent of legal protection for the individual. This book provides raw material for such reflection, but aside from a very few sallies, makes no contribution to such a project. Readers whose interest is piqued by this volume will want to read further on the subject of Roman law, and perhaps engage in such reflections on their own.